Sydney Sol Group Ltd. f/k/a MUSHLAM INC., Plaintiff,
The State of New York, THE NEW YORK CITY LOFT BOARD, ERIC T. SCHNEIDERMAN, an Attorney General of the State of New York, MARIE NAZOR, and PETER MICKLE (being tenants in occupancy of the building owned by plaintiff at 544 West 27th Street, County of New York, in the City of the State of New York), Defendants.
For plaintiff: Nativ Winiarsky, Esq. Brandon S. Gribben, Esq. Kucker & Bruh, LLP
For defendants: Bruce H. Wiener, Esq. Warshaw Burstein et al.
Barbara Jaffe, J.
Plaintiff moves for an order granting it leave to amend its complaint, summons, and affidavit of service, and to consolidate this action with Mushlam, Inc. v Nazor, et al., Index No. 100207/08. Defendants Nazor and Mickle oppose, and cross-move for an order dismissing plaintiff's amended complaint for failure to state a cause of action, lack of personal jurisdiction, failure to include necessary parties as defendants, and for sanctions. Plaintiff opposes.
In 2008, plaintiff landlord commenced an action under Index No.100207/08 seeking to eject defendant tenants from the fourth floor of 544 West 27th Street in Manhattan. (NYSCEF 20). By decision and order dated December 31, 2009, the justice previously presiding in this part granted plaintiff summary judgment. (NYSDEF 62 [Index No. 100207/08]).
In 2010, Article 7-C of the Multiple Dwelling Law, also known as the Loft Law, was amended to provide inter alia, that a former commercial-use building which includes three or more families living independently from one another for 12 consecutive months between January 1, 2008 and December 31, 2009 may qualify as an "interim multiple dwelling" (IMD) and thereby be subject to the Loft Board's jurisdiction and protection. And, pursuant to an additional amendment, where two or more families reside independently in a building located within the area north of West 24th Street, south of 27th Street, west of Tenth Avenue, and east of Eleventh Avenue, IMD status may also be conferred. (Multiple Dwelling Law § 281).
By decision and order dated December 13, 2010, the justice granted defendants leave to amend their answer to add as an affirmative defense that the premises are protected by the additional amendment conferring IMD status for a building within which two or more families independently reside within the stated boundaries and pertinent period. He also granted defendants leave to reargue the December 2009 decision, and upon reargument, granted their motion for an order vacating it given the additional amendment. (NYSCEF 21, 48).
On or about September 10, 2012, plaintiff commenced the instant action seeking a declaration that the additional amendment to the Loft Lawis unconstitutional, along with an injunction enjoining defendants from demanding or requiring that it comply with it. (NYSCEF 8).
B. Service upon defendants
On September 24, 2012, plaintiff served pleadingson a woman identifying herself as Marie Nazor. In his affidavit of service, the process server correctly describes Nazor's race, hair color, approximate height, age, and weight, and refers to her gender accordingly, except for ultimately describing it erroneously as male. (NYSCEF 23).
The same day, plaintiff affixed pleadings to Mickle's door after fruitlessly waiting five minutes for a response. Two previous failed attempts to serve Mickle were made on September 19 and September 20. The process server does not state in his affidavit whether he also mailed a copy of the pleadings to Mickle (NYSCEF 32), and Mickle denies any direct encounter with a process server, receiving the pleadings in the mail, and that the pleadings were affixed to the door of his unit. (NYSCEF 31). On or about October 15, defendants answered the complaint, asserting, among other affirmative defenses, that service was defective. (NYSCEF 3).
On October 23, 2012, plaintiff again affixed the pleadings to Mickle's door after again fruitlessly waiting five minutes for a response and after two previously failed attempts on October 19 and October 22. He also mailed a copy of the pleadings to Mickle's address. (NYSCEF 4). Mickle ...